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Assistant DAs lack civil rights protection, lawyer for Niagara County contends

LOCKPORT – The lawsuit a Niagara County prosecutor filed over alleged sexual harassment and gender discrimination by former District Attorney Michael J. Violante should be thrown out, the county’s lawyer contended last week.

In a dismissal motion in U.S. District Court, Sharon M. Porcellio, the attorney representing Niagara County, argued that assistant district attorneys such as Elizabeth R. Donatello, who filed the suit, aren’t entitled to protection under the Civil Rights Act. Donatello’s attorney said he rejects Porcellio’s argument, which didn’t discuss whether anything Violante did was illegal.

While that was going on, former Assistant District Attorney Caroline A. Wojtaszek, so far the only declared candidate for DA, picked up the endorsement of the Niagara County Independence Party on Monday. Wojtaszek, a Democrat married to former Niagara County Republican Chairman Henry F. Wojtaszek, wants to run in this fall’s election for the post.

County Independence Chairwoman Susan Agnello Eberwein called Wojtaszek “the reformer we need to restore public trust. … She has a plan to fix what is broken, and I trust her.”

Meanwhile, back in federal court, Porcellio contended in a 21-page legal memorandum that assistant DAs are members of the district attorney’s personal staff, because he can hire and fire them at will, and because higher courts have found that assistant DAs are policymakers. Thus, Porcellio argued, they don’t meet the definition of employees in the 1964 Civil Rights Act, which is the law Donatello relied upon in her complaint against Violante.

Violante resigned March 21 after complaints similar to those brought by Donatello were filed with the county human resources office by two other female employees, The Buffalo News learned.

Donatello said Violante had a record of making objectionable comments about his female prosecutors’ bodies, clothing choices and hair styles. She also is contending that Violante retaliated against her complaints by removing her from her post as a sex crime prosecutor at the main office in Lockport and sending her to Niagara Falls to work on welfare fraud cases.

Donatello’s attorney, Andrew P. Fleming of Hamburg, said he will oppose Porcellio’s contention in a reply brief due by April 20. After that, U.S. Magistrate Hugh B. Scott, who is handling the early stages of the case on behalf of U.S. District Judge Lawrence J. Vilardo, may schedule oral arguments.

“I think the motion is not supported by the facts,” Fleming said Monday. “The key is whether (Donatello) was a policymaker, and she was not, so we’re optimistic the matter will continue.”

Porcellio, who did not return a call seeking further comment, wrote in her motion that the personal staff of elected officials are specifically exempted from protection under the 1964 law. Porcellio cited court decisions that specifically refer to assistant district attorneys as personal staff of the DA.

She argued that Donatello should have sought protection under a different law, the Government Employee Rights Act of 1991.

That law says complaints should be handled by the Equal Employment Opportunity Commission, with any resulting litigation beginning at the U.S. 2nd Circuit Court of Appeals in New York City, not at the district court level.